Escolar Documentos
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2d 248
Section 204 of the Social Security Act permits the Secretary to recover
overpayments of benefits paid under Title II of the Act, 42 U.S.C. 401 Et
seq., by withholding a portion of future benefits until the amount of the
overpayment is recouped. Id. 404(a). The right of recovery, however, is
limited by section 204(b), Id. 404(b). That section provides that there may be
no recoupment when the overpaid beneficiary is "without fault"2 and the
recoupment either would "defeat the purpose" of Title II of the Act3 or would
be "against equity and good conscience."4
for a hearing. The hearing is first reviewable by the Appeals Council of the
Social Security Administration (20 C.F.R. 404.945) and then by a federal
district court under section 205(g) of the Act, 42 U.S.C. 405(g).
II. FACTS
5
The facts giving rise to this case are fully described in our original opinion, 519
F.2d at 154-55. Briefly, the named plaintiff in this suit, Arlene Mattern, applied
in 1971 for disabled widow's benefits under 42 U.S.C. 402(e) (1)(B)(ii),
based on the social security earnings of her husband. Her application was
approved and benefits were scheduled to begin in December 1971, after the
statutory waiting period of six months.5
In January and February of 1972, plaintiff received two checks. She received
her first regular benefits check in the amount of $119.30. Next, she received a
special check for $1063.80 for benefits covering the period May to December,
1971. The latter check was erroneously issued.
The Social Security Administration contends that plaintiff was told to return the
special check in a letter dated January 28, 1972 and in a telephone conversation
on that day. District office records also show that the plaintiff's sister was told
that plaintiff should return the special check. Plaintiff counters that the letter
was ambiguous and was not understood to request the return of the $1063.80
check, and that she never received the phone calls. The check was never
returned.
On July 14, 1972, plaintiff was sent a letter advising her that she had received
$1063.80 more than she was entitled to and that an adjustment would be made
in her forthcoming benefit payments. On August 7, 1972, plaintiff requested the
Secretary to "waive" recoupment of the overpayment. "Refund" and "without
fault" questionnaires were filed to support the request. Plaintiff listed her
monthly expenses and stated that she had no other source of income, that she
had been ill, that she had spent the proceeds of the check on her bills, and that
she had never received any letter or phone call advising her that the $1063.80
check had been sent in error. The district office made an initial determination
that Mrs. Mattern was not "without fault" and so denied the request for
"waiver." The office relied on both the January 28 letter and office records of
the phone calls. Plaintiff then filed a request for reconsideration, which was
denied on January 3, 1973. The office determined that plaintiff's benefits
amount would be reduced by $30 per month until the full amount of the
overpayment was recovered.
Prior to the reconsideration, plaintiff filed this class action in the District Court
for the Eastern District of Pennsylvania, seeking injunctive relief for her claim
that the procedures followed by the Secretary violated due process by failing to
provide for a hearing before the reduction of benefits. The district court
originally held that the due process clause required a hearing prior to the
adjustment of social security benefits. Mattern v. Weinberger, 377 F.Supp. 906
(E.D.Pa.1974). Appeals by the Secretary eventually resulted in the district court
reconsidering its decision in light of Mathews v. Eldridge, supra. In this second
decision, the district court found jurisdiction under either 28 U.S.C. 1361 or
42 U.S.C. 405(g), or both, and held that due process does not require a
hearing before recoupment commences by the withholding of benefits.
Accordingly, the court granted a motion by the Secretary for summary
judgment. The court also denied plaintiff's renewed motion for class
certification. Mattern v. Mathews, 427 F.Supp. 1318 (E.D.Pa.1977). Plaintiff
filed a timely notice of appeal.
III. JURISDICTION
10
The Secretary argues that we are without jurisdiction to decide this case at this
time. In our first opinion in this case, we found jurisdiction under the
Mandamus Act.6 519 F.2d at 155-57. In its reconsideration of the case, the
district court found that Eldridge had lowered the jurisdictional barriers to
review under section 205(g) of the Social Security Act,7 thus casting doubt on
the propriety of the extraordinary mandamus jurisdiction. It therefore assumed
jurisdiction at least under section 205(g).
11
The Secretary argues that section 205(h) of the Act prohibits the exercise of
mandamus jurisdiction by this court.8 He interprets recent Supreme Court cases
as indicating that section 205(g) is the exclusive avenue of judicial review of
decisions and procedures of the Secretary. Califano v. Sanders, 430 U.S. 99,
109, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Weinberger v. Salfi, 422 U.S. 749,
764, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). See also Norton v. Mathews, 427
U.S. 524, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976). The Secretary then concludes
that plaintiff's case is not ripe for review under section 205(g).
12
At the outset, we would note that it is far from clear that section 205(h) bars
mandamus jurisdiction in this case. Several other courts, after considering the
Supreme Court cases cited by the Secretary, have found jurisdiction under
section 1361 in cases involving Social Security procedures. See, e. g., Elliott v.
Weinberger, 564 F.2d 1219, 1225-28 (9th Cir. 1977), Petition for cert. filed, 46
U.S.L.W. 3680 (U.S. April 21, 1978); White v. Mathews, 559 F.2d 852, 855-56
(2d Cir. 1977), Cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500
(1978); Caswell v. Califano, 435 F.Supp. 127, 131-33 (D.Me.1977). Like the
district court below, however, we do not need to reach the question of
mandamus jurisdiction.
13
We hold that we have jurisdiction over this case under section 205(g), as
interpreted by our recent decision in Liberty Alliance of the Blind v. Califano,
568 F.2d 333 (3d Cir. 1977). Before we may take jurisdiction under this
section, plaintiff must satisfy two conditions. First, a claim for benefits must
have been presented to the Secretary. Second, there must have been a final
decision after a hearing. 42 U.S.C. 405(g); See Mathews v. Diaz, 426 U.S. 67,
75-77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Mathews v. Eldridge, supra, 424
U.S. at 328-29, 96 S.Ct. 893; Liberty Alliance of the Blind v. Califano, supra,
568 F.2d at 344.
14
The first requirement was met by the plaintiff. The second requirement, which
is essentially an exhaustion requirement, was not met, but is waivable either by
the Secretary, Mathews v. Diaz, supra, 426 U.S. at 76-77, 96 S.Ct. 1883, or by
the court on its own determination, Mathews v. Eldridge, supra, 424 U.S. at
330-32, 96 S.Ct. 893. Liberty Alliance of the Blind v. Califano, supra, 568 F.2d
at 344; See Weinberger v. Salfi, supra, 422 U.S. at 765-67, 95 S.Ct. 2457. In
Eldridge the Court discussed two factors in reaching its conclusion that further
exhaustion should not be required. First, the claim presented in that case, the
right to a hearing before disability benefits are terminated, was said to be
collateral to the substantive claim of entitlement to benefits. 424 U.S. at 330, 96
S.Ct. 893. We hold, and the Secretary concedes, that Mrs. Mattern's assertion of
the right to a prior hearing is collateral to her claim for benefits. Second, the
Supreme Court found that plaintiff had raised "at least a colorable claim . . . an
erroneous termination (of disability benefits) would damage him in a way not
recompensable through retroactive payments." 424 U.S. at 331, 96 S.Ct. at 901
(footnote omitted). We find that the plaintiff in this case, in light of the
financial hardship she alleges as a basis for "waiver" of recoupment, has made a
colorable showing of irreparable harm from the interim reduction of benefits.
We therefore find that this is a case where the claimant's interest in having the
constitutional issue resolved promptly is so great that further deference to
agency procedures is inappropriate. Mathews v. Eldridge, supra, 424 U.S. at
330, 96 S.Ct. 893; See Liberty Alliance of the Blind v. Califano, supra, 568
F.2d at 345-46; De Lao v. Califano, 560 F.2d 1384, 1388 (9th Cir. 1977);
Johnson v. Mathews, 539 F.2d 1111, 1116-17 (8th Cir. 1976).9 IV. DUE
PROCESS
15
The Secretary does not dispute that plaintiff's interest in social security benefits
is a property right for purposes of the fifth amendment's due process clause.
The Supreme Court in Eldridge considered this issue settled. 424 U.S. at 332,
96 S.Ct. 893. The question presented in this case is what process must be
afforded a claimant before benefits are reduced in order to recoup an alleged
overpayment. Basically, plaintiff contends that due process requires that a
recipient of benefits have a right to an oral hearing prior to the reduction of
benefits, instead of afterwards as is now provided by the Secretary's regulations
and practice.
16
The Supreme Court, in remanding this case to us, directed that we consider the
matter in light of Eldridge. In that case, the Court set out a three-part balancing
test for determining the specific process which is constitutionally required:
One of the three factors involved in the balancing test in Eldridge is the
plaintiff's interest which will be affected by the Secretary's action. The Court in
Eldridge was dealing with the decision of the Secretary to terminate disability
benefits. The Court in large part compared this interest to the "brutal need" of
the welfare recipient in continued benefits, which formed the basis of the
Court's decision in Goldberg v. Kelly, 397 U.S. 254, 263-64, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970), that a hearing is required prior to a termination of benefits.
While the plaintiff's interest in Eldridge was found to be substantial, it was not
considered to be as strong as that presented to the Court in Goldberg. First,
unlike welfare payments, disability benefits under 42 U.S.C. 423 are not
need-based. Further, even if disability benefits are erroneously terminated, the
claimant could turn to welfare payments. The Eldridge court, nevertheless, did
not find this difference to be determinative of the question whether a prior
hearing was needed, and emphasized that "the degree of difference (between
the interest of the welfare and disability benefits recipients) can be overstated."
424 U.S. at 341, 96 S.Ct. at 906.
20
The district court found that plaintiff's interest not to have benefits temporarily
reduced was weaker than the interest in Eldridge not to have benefits
temporarily terminated. We disagree with this analysis. Unlike the disability
benefits under 42 U.S.C. 423 considered in Eldridge, the benefits involved in
this case are in part need-based and are subject to reduction when the recipient
receives income from a number of other sources. See 42 U.S.C. 403; Elliott v.
Weinberger, supra, 564 F.2d at 1231. Further, when a recipient has claimed a
"waiver" of recoupment, he is claiming that recoupment would defeat the
purpose of the Act or would be against equity and good conscience. 42 U.S.C.
404(b). The Secretary's regulations interpret the statutory prohibition of
recoupment in terms of financial hardship to the recipient. See notes 2-4 Supra.
Therefore, when a waiver is erroneously denied by the Secretary prior to a
hearing, the recipient faces a particularly severe impact.10
21
Even though the recipient subject to recoupment is faced only with a reduction
of benefits, his need for full benefits, particularly if he qualifies for a "waiver,"
may often be greater than the need of the disability benefits recipient.
Nevertheless, we do not believe that the plaintiff's interests here are as strong as
those involved in Goldberg. The victims of erroneous recoupment, like the
claimant in Eldridge, generally have resort to welfare and other benefits. We
conclude that the private interest, particularly in the "waiver" cases, falls
between that considered in Eldridge and that in Goldberg. See Elliott v.
Weinberger, supra, 564 F.2d at 1231; Cf. Tatum v. Mathews, 541 F.2d 161,
165 (6th Cir. 1976) (Supplemental Security Income program, 42 U.S.C.
1381 Et seq.); Johnson v. Mathews, supra, 539 F.2d at 1121-22 (same).
23 is a more sharply focused and easily documented decision than the typical
This
determination of welfare entitlement. In the latter case, a wide variety of information
may be deemed relevant, and issues of witness credibility and veracity often are
critical to the decisionmaking process. Goldberg noted that in such circumstances
'written submissions are a wholly unsatisfactory basis for decision.' 397 U.S., at 269
(90 S.Ct., at 1021.
By contrast, the decision whether to discontinue disability benefits will turn, in most
24
424 U.S. at 343-45, 96 S.Ct. at 907. The court noted that the claimant's access
to information in files and the opportunity to submit further information after
an initial decision lessened the risk of an erroneous determination. The court
also looked to the low percentage of all disability terminations which are
reversed after administrative appeal, but noted that "although we view such
information as relevant, it is certainly not controlling in this case." Id. at 347, 96
S.Ct. at 908.
26
In our first decision in this case we relied to a large extent on the utility of a
hearing as the determinant of what process should be due. In that opinion we
separately analyzed "reconsideration" and "waiver" cases, and found a prior
hearing generally not required in the former and generally required in the latter.
27
Id.
30
determinations were involved, the Supreme Court had indicated that written
submissions were insufficient for an accurate determination and that an oral
hearing would be needed. 519 F.2d at 164-67.
31
32
The third part of the Eldridge balancing test is the government's interest,
including the governmental function involved and the fiscal and administrative
burdens that a pre-recoupment hearing would involve. In large part we believe
that the government interest involved in this case is similar to that analyzed in
Eldridge. We do find some distinctions between this case and Eldridge, which
indicate that our requiring a prior hearing would impinge less on the
administration of social security benefits.
33
The Eldridge Court did not have clear evidence of the administrative burden of
imposing a requirement of a hearing prior to the termination of disability
payments. The Court commented that "(n)o one can predict" the increased
demand for hearings if a hearing were required before termination instead of
afterwards. It then reasoned, "the fact that full benefits would continue until
after such hearings would assure the exhaustion in most cases of this attractive
option." 424 U.S. at 347, 96 S.Ct. at 909. Further, the Court faced widely
varying estimates of the probable additional costs of pre-termination hearings,
and so concluded that experience with constitutionalizing administrative
procedures suggested that the additional cost "would not be insubstantial." Id.
34
Second, we believe that the Secretary faces much less risk of loss of erroneous
payments to recipients than was present in Eldridge. In that case, the hearing
under discussion would determine whether the recipient was still eligible for
benefits, after the Secretary had made an initial determination of ineligibility. If
payments were made pending the hearing, the Secretary faced a substantial risk
of paying benefits to an ineligible recipient without hope of recovering those
funds. In contrast, the hearing we are considering is to determine whether the
Secretary will be permitted to recoup an overpayment by deducting the amount
from a continuing stream of benefits being paid to a concededly eligible
recipient. In the general case, a delay in beginning recoupment will not
jeopardize the Secretary's ability to recover from later payments. Thus, we
believe that the Secretary's interest in preserving public funds is far less than
was before the Supreme Court in Eldridge. See generally Goldberg v. Kelly,
supra, 397 U.S. at 265, 90 S.Ct. 1011.
D. Conclusion
36
37
Consequently,
the Secretary's pre-recoupment procedures permitting written
evidence and providing for an examination of written documents, when coupled with
a right of a Post -recoupment oral hearing, satisfy due process.
38
519 F.2d at 165. We did, however, add a caveat to this holding. Because we
could not envision all of the sorts of inquiries which might be called
"reconsiderations" under the regulations, we insisted that pre-recoupment oral
hearing be provided when the Secretary's decision did not rest on documentary
evidence, but instead involved an evaluation of the claimant's credibility. Id. at
165-66.
39
40
While
we believe that claimants in "waiver" cases have a constitutional right to a
pre-recoupment oral hearing, that right may not attach in all cases. Where a claimant
in a "waiver" case raises no disputed issue of fact, or where, accepting his version of
the facts as true, we could say as a matter of law that he was not entitled to retain the
overpayment, then again it is hard to see how a pre-recoupment hearing would be of
benefit. Thus, the constitutional requirement of a hearing may be limited to some
extent by principles analogous to summary judgment in civil litigation.
41
42
We find that our analysis of due process in our first consideration of this case is
substantially consistent with the three-factor balancing test set forth in Eldridge.
Accord Elliott v. Weinberger, supra.
43
44
We hold that when the claimant has filed only for reconsideration, the balance
of the three factors yields the same result as was reached in Eldridge that a
post-recoupment hearing will suffice. We adhere to our former opinion
regarding reconsideration cases except in one respect. In the prior opinion, we
said that if a reconsideration case should arise which rested on credibility
evidence, a hearing would be constitutionally required. We do not believe that
this qualification is consistent with Eldridge, which declares that procedural due
process is to be shaped according to "the risk of error inherent in the
truthfinding process as applied to the generality of cases, not the rare
exceptions." 424 U.S at 344, 96 S.Ct. at 907.
45
When the recipient claims a "waiver," i. e. that the Secretary is barred from
recouping an overpayment by section 204(b), we adhere fully to our prior
decision. Because of the similarity of the "waiver" inquiry to that considered by
the Supreme Court in Goldberg v. Kelly, supra, and in light of the analysis of
the Eldridge decision, we hold that the due process clause requires a prerecoupment oral hearing when a recipient has filed a legally sufficient claim of
entitlement to "waiver" of recoupment under section 204(b).
46
To the extent that a hearing is required, we do not believe that a full judicial or
quasi-judicial proceeding is necessary. A court must be flexible in fitting
procedural requirements to the circumstances of a case. Board of Curators v.
Horowitz, supra, 435 U.S. at 78, 98 S.Ct. 948; Cafeteria Workers v. McElroy,
367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). After considering all
factors under the analysis in Eldridge, we find that an informal oral hearing will
provide adequate safeguards to recipients of Title II benefits who are subject to
recoupment. We adhere fully to the minimum standards for such a hearing
which we described in our earlier opinion:
47 therefore believe that due process requires only an informal, oral hearing which
We
provides the following safeguards:
48 an impartial decision maker separated from those making the previous
1)
administrative determinations in the case;
2) timely and adequate notice to the recipient of the reasons for recoupment;
49
50 an effective opportunity for the recipient to confront and cross-examine adverse
3)
witnesses;
51 an effective opportunity for the recipient to present his own argument and
4)
evidence orally;
52 an opportunity to retain counsel or have the informal assistance of a friend, if the
5)
recipient desires;
53 a report written by the decision maker which informally states the reasons and the
6)
evidence relied on in reaching his decision;
54 an opportunity for all parties to receive and challenge the decision maker's report
7)
before it becomes final.
55
1011.
V. CLASS ACTION
56
The district court denied plaintiff's motion for a class action. The only reason
indicated for its departure from its certification of the class in its first
consideration of the case, 377 F.Supp. at 915-916, was a citation to Weinberger
v. Salfi, supra. Apparently the court was concerned over the compatibility of a
class action with jurisdiction under section 205(g) of the Act, 42 U.S.C.
405(g).
57
In Liberty Alliance of the Blind v. Califano, supra, which was decided after the
trial judge's consideration of this case, we indicated that a class action could be
maintained under section 205(g). Since we will reverse and remand this case,
the district court should reconsider class certification in light of Liberty
Alliance. See also Johnson v. Mathews, supra; Caswell v. Califano, supra.
58
The judgment of the district court will be reversed and the case remanded for
further proceedings consistent with this opinion.
Honorable Walter K. Stapleton, United States District Judge for the District of
Delaware, sitting by designation
States from, any person who is without fault if such adjustment or recovery
would defeat the purpose of this subchapter or would be against equity and
good conscience.
2
The Act has since been amended to provide for a five-month waiting period. 42
U.S.C. 423(c)(2) (Supp. V 1975)
Id. 405(h):
The findings and decisions of the Secretary after a hearing shall be binding
upon all individuals who were parties to such hearing. No findings of fact or
decision of the Secretary shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. No action against the United
States, the Secretary, or any officer or employee thereof shall be brought under
section 41 of Title 28 to recover on any claim arising under this subchapter.
10
Although we do not know precisely how long the average claimant must wait
for a hearing on a request for reconsideration or "waiver," administrative delays
appear to be comparable to the "torpidity" considered by the Eldridge Court,
424 U.S. at 342, 96 S.Ct. 893. The length of deprivation of benefits is entitled
to some weight in evaluating the plaintiff's interest in a pre-recoupment
hearing. See Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 42 L.Ed.2d
521 (1975)
11
reversals. The reversal rate in the hearing was therefore 35%, and the "overall
reversal rate" less than 1%. See Elliott v. Weinberger, 371 F.Supp. 960, 966-67
(D.Haw.1974), Aff,d 44 U.S.L.W 2175 (9th Cir. Oct. 1, 1975), Vacated and
remanded, 425 U.S. 987, 96 S.Ct. 2197, 48 L.Ed.2d 813 (1976), On remand,
564 F.2d 1219 (9th Cir. 1977), Petition for cert. filed, 46 U.S.L.W. 3680 (U.S.
April 21, 1978). The Secretary has advised the court that the Social Security
Administration no longer keeps specific figures for overpayment appeals.
However, the Secretary indicated his belief that these percentages have not
substantially changed.
One of the elements in this appeal is the right to a hearing on claims for
"waiver," under 42 U.S.C. 402(b) (1970). In order to implement the decision
in Buffington v. Weinberger, Civ.No. 734-73C2 (W.D.Wash. Oct. 22, 1974),
Aff'd sub nom. Elliott v. Weinberger, 44 U.S.L.W. 2175 (9th Cir. Oct. 1, 1975),
Vacated & remanded, 425 U.S. 987, 96 S.Ct. 2197, 48 L.Ed.2d 813 (1976), On
remand, 564 F.2d 1219 (9th Cir. 1977), Petition for cert. filed, 46 U.S.L.W.
3680 (U.S. April 21, 1978), the Secretary instituted a system of informal
hearings ("personal conferences") before denying "waiver" requests. The order
applied to a nationwide plaintiff class, excepting those residing in the District
of Hawaii and the Eastern District of Pennsylvania (where other similar suits
were pending). In 1977, 42,880 waiver requests were considered, of which
19,535 were granted in the first instance. Of those denied, 1,212 resulted in a
personal conference. After a conference, 350 decisions were reversed. Thus, the
reversal rate after the pre-recoupment hearing was 29%, while the overall rate
of increase of waivers granted was less than 2%.
While this data is relevant to our inquiry, we would echo the Eldridge Court's
warning against reliance on "bare statistics," 424 U.S. at 346-47, 96 S.Ct. 893,
and do not find this information controlling in this case.
12
Under a district court order, the Secretary has had some experience with
providing an informal hearing prior to a decision denying a request that
recoupment be "waived." See note 11 Supra. In 1977, 42,880 "waiver" requests
were filed, of which 23,345 were denied in the first instance. Of those denials,
only 1,212 persons availed themselves of the right to a "personal conference"
before their benefits were reduced. These figures do not show a great increase
in the requests for hearings in comparison to the statistics for 1970, when 1,600
requests were made for a post-recoupment hearing for both waiver and
reconsideration cases. While the 1977 figures are of course not necessarily
predictive of future requests for hearings, the Secretary has not argued that this
number is expected to rise. See also Elliott v. Weinberger, supra, 564 F.2d at
1235